Submitted December 13, 2013
Appeal from United States District Court for the District of Minnesota - St. Paul.
For United States of America, Plaintiff - Appellee: Lisa D. Kirkpatrick, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Saint Paul, MN; Jeffrey S. Paulsen, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Minneapolis, MN.
For Lewis Pate, True Name Lewis Antwhane Pate, III, Defendant - Appellant: Katherine M. Menendez, Assistant Federal Public Defender, Douglas Olson, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Minneapolis, MN.
Lewis Pate, True Name Lewis Antwhane Pate, III, Defendant - Appellant, Pro se, Inez, KY.
Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
RILEY, Chief Judge.
Minnesota federal jurors convicted Lewis Pate of being a felon in possession of a firearm, and the district court sentenced him pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to serve 200 months in prison. In this appeal, Pate challenges (1) his conviction, arguing insufficiency of the evidence; and (2) his sentence, asserting a Minnesota conviction for fleeing a police officer in a motor vehicle, see Minn. Stat. § 609.487, subd. 3, is not a violent felony within the meaning of the ACCA's residual clause.
Since the parties filed their original briefs, the Supreme Court issued an intervening ACCA decision in
Descamps v. United States, 570 U.S. __, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and we requested supplemental briefing to address the applicability of Descamps to this case. Suggesting Minn. Stat. § 609.487, subd. 3, is textually indivisible under Descamps, Pate maintains his Minnesota motor vehicle flight convictions are no longer violent felonies. After careful review, we conclude Descamps does not alter our earlier holding that fleeing a police officer in a motor vehicle in violation of Minn. Stat. § 609.487, subd. 3, qualifies under the ACCA's residual clause, see United States v. Bartel, 698 F.3d 658, 662 (8th Cir. 2012). Accordingly, we affirm.
Pate's case began with an exchange of gunfire on a Tuesday afternoon in St. Paul, Minnesota. Two men in black hoodies fired shots at another man, who returned fire. After the men ran away, police officers arrived at the scene, and followed a tracking dog to a residence approximately two blocks away. Officers discovered one shooting suspect sitting in a parked car. Having reason to believe one of the shooters, still armed, was inside the residence, the officers entered with the tracking dog to conduct a security sweep. Pate then gave himself up, claiming " I'm the one that was being shot at." After receiving a search warrant for the residence, officers located a .38 caliber revolver wrapped in a towel hidden inside a hamper. Officers also found a black hoodie hidden behind a couch.
Later that evening, Pate (apparently unaware the police had already found the gun) called various individuals from jail and asked them to " get [his] money " out of the residence. (Emphasis added). Despite his effort to speak in code, Pate repeatedly gave away his intent. For example, trying to clarify what he meant by " money," he explained on one call, " They tryin' to charge me wit' a firearm, man. . . . You feel what I'm sayin', though?" In an interview with law enforcement personnel the following day, Pate admitted the gun was his. He said he recently purchased the gun for $100, but insisted he was not carrying the firearm at the time of the shooting. Pate's
story--that he was driving a car when a single shooter opened fire on him--was inconsistent with eyewitness ...